From washingtonpost.com: "The FBI may not track the locations of cell phone users without showing evidence that a crime occurred or is in progress,..In separate rulings over the past two weeks, judges in Texas and New York denied FBI requests for court orders that would have forced wireless carriers to continuously reveal the location of a suspect's cell phone as part of an ongoing investigation. Other judges have allowed the practice in other jurisdictions, but the recent rulings could change that.

Depending on a wireless phone's capabilities, carriers can determine either precise or rough locations of users when they make or receive calls, a feature primarily used for emergencies.

On Tuesday, a coalition of technology and privacy groups filed suit challenging a Federal Communications Commission order that would make it easier for law enforcement to monitor e-mail and other Internet-based communication.

In the New York and Texas cases, the courts approved FBI requests for other information from the wireless carriers, including logs of numbers a cell phone user called and received calls from. Court orders for that information require law enforcement agencies to show only that the information is relevant to an ongoing investigation.

But the FBI also sought cell-site locations, which the courts said amounted to the ability to monitor someone's movements. The judges ruled that such information requires law enforcement to show "probable cause" that a crime has been or is being committed.

Justice Department officials countered that courts around the country have granted many such orders in the past without requiring probable cause. Such orders granted quickly, they said, are critical in tracking fugitives and kidnappers, for example.The officials said that in their interpretation, cell phones are not tracking devices. And even if they are, they said, not all tracking devices require a showing of probable cause.The officials...said that only when someone has an expectation of privacy does the higher threshold need to be met and that cell phone use does not qualify.

Both [Magistrate Judge James Orenstein of the U.S. District Court for the Eastern District of New York] and federal Magistrate Judge Stephen Wm. Smith of the U.S. District Court for the Southern District of Texas, rejected that argument, and said the government was relying on creative and contrived legal theories." Story... [Mark Godsey]

From NPR.com: "All Things Considered, October 24, 2005 · The FBI has made a number of errors during surveillance operations intended to catch terrorists and spies. Newly released documents show FBI agents regularly continued wiretapping and physical searches long after legal authorization had expired.

The agents may have violated guidelines developed for special wiretaps and searches authorized under the Foreign Intelligence Surveillance Act. That law allows surveillance of potential spies or terrorists before there's any evidence of a crime. But agents must follow a heavy set of rules, in order to avoid infringing on civil liberties. The Electronic Privacy Information Center requested the documents under the Freedom of Information Act." Listen here. [Mark Godsey]

The Second Circuit suppressed the results of a sweep done after a suspect invited cops into his apartment. The court found that there were no facts suggesting that someone else might be in th ehouse prepared to launch an attach. Story here, opinion here. [Jack Chin, thanks to Jared Hautamaki]

From PCPro.co.uk: "The European Commission has accepted proposals to log details of all telephone, email and Internet traffic in an attempt to combat terrorism and serious crime.

The proposals, which are designed to harmonise data retention practices across the EU, will need the backing of all 25 member states. However some states believe they have been watered down in response to pressure from telecommunications firms and civil rights groups.

Under the EC proposals telecoms operators will be required to store data for one year and ISPs to retain it for six months. In the wake of the Madrid bombings, the EU's Council of Ministers had originally called for a three year retention period...Home Secretary Charles Clarke stressed the importance of a common approach. 'Getting some kind of uniformity across Europe is important because this is such an important technique in how we solve serious crimes and in dealing with counter-terrorism,' he said." Story... [Mark Godsey]

From Law.com: (The Recorder)--This past Wednesday, the 9th U.S. Circuit U.S. Court of Appeals, ruled that, in their search for contraband, border agents "may disembowel gas tanks, drill holes in truck beds and disassemble car doors without reasonable cause for suspicion." Judge Betty Fletcher wrote a concurrence to her own opinion in U.S.A v. Chaudhry, 05 C.D.O.S 8344, in which she expressed her "'distaste for the government's game-playing.'...The game-playing involved the government's goal of getting an appeals court to agree that border agents could take apart an automobile without apparent suspicion," even though all three cases involved "clear reasons for suspicion that the government chose not to enter into evidence -- from drug-sniffing dogs to visibly nervous drivers." Still, according to Judge Fletcher, "the government wanted confirmation that no suspicion is required for extensive, intrusive searches at the border...This would have an ancillary benefit for the government -- it would not have to prove the reliability of its drug-sniffing dogs."

"The question of whether the government may conduct such extensive searches without suspicion, she added, "'is an entirely fictional construct. Suspicion existed in each case, and in my view, review of cases at the appellate level is a waste of judicial resources. The only possible purposes are the government's desire to push the envelope to its limits: to find out how much destruction it can do without any suspicion, and to avoid proving it uses reliable dogs.'"

"Northern District of California Federal Defender Barry Portman said Fletcher seemed constrained by the longstanding trend of U.S. Supreme decisions expanding the freedom of border guards to conduct random searches." The full story... [Mark Godsey]

Mississippi CrimProf Tom Clancy has written a very interesting review of the handful of Fourth Amendment cases John Roberts has decided as a Judge of the D.C. Circuit. Hints of the Future?: John Roberts Jr.'s Fourth Amendment Cases as an Appellate Judge is available on SSRN. [Jack Chin]

The 11th US Circuit Court of Appeals ruled that a Northern Georgia County's policy, mandating strip searches of all inmates booked into jail, violated the Fourth Amendment. The case Hicks v. Moore, No. 03-13686, involved a woman, Janet Hicks, who sued the County's sheriff and jail supervisor after she was strip-searched in the jail, following her misdemeanor arrest for a domestic-violence dispute.

According to the circuit's precedent for strip searches, found in Wilson v. Jones, 251 F.3d 1340, a strip search must be justifed by reasonable suspicion, a more stringent standard than required by the US Supreme Court. So although the Court ultimately overturned the blanket strip search policy, it unanimously ruled that Hicks' strip search did not violate her Fourth Amendment rights because she was arrested for a violent crime giving reasonable suspicion that she may have been armed. More from Law.com... [Mark Godsey]

CrimProf Craig Lerner of George Mason has posted The Reasonableness of Probable Cause on SSRN. Here's the abstract:

Probable cause is generally cast in judicial opinions and the scholarly literature as a fixed probability of criminal activity. In the weeks before the September 11 attacks, FBI headquarters, applying such an unbending standard, rejected a warrant application to search Zacarias Moussaoui's laptop computer. This article, which begins with an analysis of the Moussaoui episode, argues that the probable cause standard should be calibrated to the gravity of the investigated offense and the intrusiveness of a proposed search. Tracing the evolution of probable cause from the common law through its American development, the article argues that the Supreme Court's current insistence on a "single standard" lacks historical support. Probable cause should be recast within a reasonableness framework, embracing the common sense view that not all searches equally trench on privacy concerns and not all crimes equally threaten the social order.

Actually, the racial disparity was not found to exist in connection with who is stopped, but rather post-stop treatment. Minorities are substantially more likely to be searched, handcuffed, etc. than whites. Story . . . [Mark Godsey]

From BNA.com: "Nothing in the Fourth Amendment prevents probationers from knowingly and intelligently waiving their right to be free from suspicionless home searches as a condition of probation" says the Seventh Circuit in State v. Barnett. Decision here. [Mark Godsey]

On Monday, Toledo CrimProf David Harris was featured on All Things Considered. From NPR.org: "In investigating terrorist attacks, London police have announced they will use racial profiling; other cities, like New York, have said they will not. Michele Norris talks with University of Toledo law professor David Harris about the use of racial profiling to prevent terrorist attacks. Harris argues that racial profiling actually diminishes the effectiveness of finding terrorists." Listen to Harris here. [Mark Godsey]

From NPR.com: "Morning Edition, July 28, 2005 · In the wake of the London bombings, New York City officials have begun random searches of subway passengers. Some New Yorkers are taking it in stride, but a civil liberties group is raising legal questions saying that the search policy gives a false sense of security." Listen to story here. [Mark Godsey]

Barry Scheck in The Champion:"Does your cable company want to expand the PATRIOT Act? According to a recent Wall Street Journal editorial, the answer is yes; hotels, Internet service providers and other businesses support expanded no notice subpoena power because they want the 'legal cover of being able to say they were complying with a subpoena' when they hand over your personal records to the FBI without telling you and without giving you an opportunity to contest the search. The newspaper went on to endorse a provision in legislation to renew the PATRIOT Act (S. 1266) that would create breathtaking new powers for the FBI to subpoena any materials that are relevant to foreign intelligence investigations." Full Column here... [Mark Godsey]

From NYTimes.com: Just this morning, around 5 am Eastern, 10 am locally, London Police have fatally shot a man at London's Stockwell subway station, the day after four failed bombing attempts on trains and a bus.) In response to the latest terrorist acts in London, "[t]he police last night began random searches of backpacks and packages brought into the New York City subways as officials expressed alarm about the latest bomb incidents in the London transit system. The searches, which will also include commuter rail lines, are not a response to a specific threat against the city, said Mayor Michael R. Bloomberg, who authorized the searches shortly before he announced them at a morning news conference.

The police have previously inspected bags at major events like parades and demonstrations, and the authorities in Boston conducted random baggage searches on commuter rail lines during the Democratic National Convention last year, but officials here could not recall a precedent for a broad, systematic search of packages in the New York City subways, which provide 4.7 million rides each weekday. At some of the busiest of the city's 468 stations, riders will be asked to open their bags for a visual check before they go through the turnstiles. Those who refuse will not be permitted to bring the package into the subway but will be able to leave the station without further questioning, officials said." Story...

NPR: "Monica Brady-Myerov of member station WBUR reports on new security cameras in Chelsea, Mass., that will put most of the city under video surveillance. Residents and business owners have differing opinions on how effective the cameras will be in deterring crime." Listen to the story here... [Mark Godsey]

From washingtonpost.com: "Mayor Anthony A. Williams (D) said...that his administration will look into increasing the use of surveillance cameras in the District, as part of a study of lessons from...the (July 7) terrorist bombings in London. The D.C. police department has 14 such cameras, most of them in the downtown area, that feed images to a high-tech operations center. Williams said he would like to see them turned on and monitored more often, and he also proposed adding cameras to neighborhoods, parks, recreation centers and commercial areas throughout the city....The mayor's comments reopen a debate that broke out three years ago after D.C. Council members learned about the camera system, which had been installed without their knowledge. In response to concerns from the council and some members of Congress, the police department came up with guidelines designed to ensure that privacy rights would not be abused." Story... [Mark Godsey]

From MSNBC.com: Philadelphia, PA (AP): "Police said Thursday they have made an arrest in the shooting death of a woman on a downtown sidewalk moments after she stepped off a bus — a killing caught on tape by surveillance cameras. Juan Covington, a subcontractor at the hospital where Patricia McDermott worked as an X-ray technician, was charged with killing her May 17. Police said they had video of him at Pennsylvania Hospital shortly after the shooting, wearing clothes matching the description of the killer. McDermott, 48, was shot in the head in the pre-dawn hours as she walked from the downtown bus stop to her job. Video taken from cameras mounted on several buildings showed the killing...Investigators released portions of the grainy surveillance footage in the hope that someone might recognize the shooter." Story... [Mark Godsey]